Our Criminal, Traffic and Corporate Regulatory Division is headed up by Director Chris Nyst who is recognised as one of Australia’s most experienced criminal lawyers.

What is Domestic Violence? Hear from Cherie Orevich on what the law says under the Domestic and Family Violence Protection Act.

What is a Domestic Violence Protection Order application? Jonathan Nyst, Associate, explains the process.

What do I do if someone takes out a Domestic Violence Order against me? Hear from our solicitor, Cherie Orevich.

DOMESTIC VIOLENCE PROTECTION ORDERS

Over the past 5 years state and federal governments, police, courts and society broadly have made a concerted effort to combat the growing problem that is ‘Domestic Violence’.

Domestic Violence is defined in section 8 of the Domestic and Family Violence Protection Act (2012). The definition is quite broad and relates to behaviour that occurs in the context of a relevant “domestic relationship”. This can be either:

Physically or sexually abusive; or

Emotionally or psychologically abusive; or

Economically abusive; or

Threatening; or

Coercive; or

If a person controls or dominates another person in a way that causes that person to fear for themselves or the safety or wellbeing of another.

Examples of domestic violence extend well beyond physical violence. Monitoring someone’s whereabouts using technology or accessing their private email or social media accounts without permission can amount to Domestic Violence. Cutting off access to a bank account can be abusive. Using threatening and derogatory language can also be abusive.

Domestic Violence Protection Orders

A Domestic Violence Protection Order application is a civil application brought by a person, referred to as the applicant or the aggrieved, asking the court to make an order requiring another person, referred to as the respondent, to do, or refrain from doing, certain acts towards the aggrieved. The types of orders that are regularly made within applications include orders forbidding someone from contacting the applicant, or from approaching them, or from telephoning them or sending them text messages, and that sort of thing.

If you’ve been the victim of domestic violence, there are two different ways in which you can apply to the court for an order. You can either make the application yourself by filling out the relevant form, which is available at any police station or courthouse, and filing that form with the court, or alternatively, you can make a complaint about the domestic violence to the police, and from there the police usually, and most often will, file and prosecute the domestic violence application on your behalf. You don’t have to pay anything for that, and you don’t have to retain lawyers. But you should keep in mind that if the police bring the application on your behalf, it will be their decision as to how the application is run and therefore, whilst you will undoubtedly be consulted and perhaps required to give evidence, your influence on the actual conduct of the proceedings is somewhat limited.

If a domestic violence application is brought against you, and the court ultimately makes an order against you, you could be bound by that order for up to 5 years.

It is important to understand that, while many applications involve allegations of criminal behaviour such as assaults or threats, these domestic violence applications are in a civil jurisdiction, meaning that the court needs only to be convinced the allegations are true on the balance of probabilities, not beyond reasonable doubt, so there’s a lower standard of proof in domestic violence proceedings than there is in criminal matters. That of course benefits the person asking the court to make an order, and puts a greater onus on the person accused of domestic violence to refute any allegations being made, regardless of their merit.

Under the legislation a court should never make a domestic violence order unless it is satisfied of each of three essential elements –

that a relevant relationship exists between the aggrieved and the respondent. The concept of a relevant relationship is a very broad one, but typically it includes any person with whom you are or have been married to, or in a relationship with, or lived with, or who is a member of your family.

that the respondent committed domestic violence against the aggrieved. Again, the concept of domestic violence is very broadly defined. It includes things such as physical assaults, but it also includes things such as damaging property, psychological abuse, economic abuse – such as taking or disposing of someone’s property, or taking control of their finances or stopping them from getting a job.

that a protection order is necessary or desirable to protect the aggrieved from domestic violence in the future. This is an important and interesting element in the equation because, even if the court is satisfied that a relevant relationship existed between the parties, and one of them was guilty of domestic violence towards the other, the court still can’t make a domestic violence order unless it is satisfied that there is an ongoing need or desirability for an order to be made. So if, for example, following the incident or incidents alleged, a lot of time has passed and there’s been no misbehaviour, and perhaps no contact between the parties, for some considerable time, perhaps the offending party has moved away or otherwise exhibited an intention not to have any contact or cause any trouble, the court may not be satisfied that it is necessary or desirable to make an order going forward. In that case, no order should be made.

It is important to understand however, that the domestic violence courts are not bound by the rules of evidence, and they can inform themselves as they see fit. The court can act even on opinion and hearsay evidence. That can make things a little unpredictable, so if you are going to court for a domestic violence hearing, it is critical that you are well-prepared.

What are the usual conditions of a Domestic Violence Order?

Any domestic violence order must include a condition that the respondent be of good behaviour and not commit domestic violence against the aggrieved.

It is possible, and not at all uncommon, for the court to also impose further conditions of various kinds. They won’t necessarily relate solely to the aggrieved. They can include other ‘named persons,’ such as children and other relatives. Ultimately, they’re largely at the discretion of the Magistrate, so they vary from case to case.

The sort of orders that are regularly made include orders:

Prohibiting particular behaviour that might constitute or lead to domestic violence;

Prohibiting the respondent from approaching, or attempting to approach, or coming within, say, 100 metres of the aggrieved, or some other named person;

Prohibiting the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or a ‘named person’, including by telephone or text or social media; and

Prohibiting the respondent from locating, attempting to locate or asking someone else to locate the aggrieved or a named person.

In some cases the court will impose a condition allowing the aggrieved to return to a former matrimonial home or other residence to recover their property, usually in the company of police. Perhaps even more significantly, the courts also have power to impose what is called an ouster condition which prohibits a person from remaining at nominated premises, including their usual place of residence, or from entering or attempting to enter those premises, or even approaching within a stated distance of them. Essentially, a person can be ousted from their own home, and prohibited from going anywhere near it. Not surprisingly, however, before imposing a condition of that kind, the court is required to carefully weigh up a number of matters so it can be absolutely satisfied such a condition is necessary or desirable in all the circumstances.

What do I do if someone takes out a Domestic Violence Order against me?

First and foremost, if you become the subject of a Domestic Violence Order application, you should seek legal advice immediately. Often these applications are accompanied by criminal charges and timely and accurate legal advice is essential to protecting your interests.

Beyond that, as a Respondent to an application you have various options available to you.

Firstly, if you do not want to resist the application, you can consent to a Domestic Violence Order being made against you. You can consent to an order without admitting liability or having any findings of wrongdoing made against you in relation to the alleged conduct. But there will be other consequences that you ought to consider at that time with your legal adviser.

Secondly, if you want to resist the application for a Domestic Violence Order, you can request a date for the application to be heard before a magistrate. The court will then adjourn the matter and give both parties a chance to present written and oral evidence before it makes a decision. The court will probably impose an interim protection order to protect an applicant during any adjournment period.

You also have options to negotiate the terms of a Domestic Violence Order, either by seeking that the order be withdrawn, amending the terms of the orders sought in the application or amending the length of time to which the application for protection applies.

But don’t try to do this on your own. Obviously, there is significant tension between you and the other party for it to get to this point. You are both best served by having independent professionals guide you through that process.

What happens if I breach a Domestic Violence Order?

Domestic Violence Orders in Queensland are a civil law order between two individuals. Having a Domestic Violence Order or Protection Order either taken out or confirmed against you is not an offence, by itself, nor does it appear on any criminal record.

However, in Queensland, to breach a Domestic Violence Order or any of its conditions is a criminal offence against section 177 of the Domestic and Family Violence Protection Act and can carry significant penalties, even as a first offender.

A first offender who breaches a Domestic Violence Order can face a fine of up to $6,600 and up to three years imprisonment. If a person has been convicted of a domestic violence offence within a five year period of being charged with a second or subsequent breach, the court can impose increased penalties including a fine of up to $13,200 and a jail sentence of up to five years. It is imperative that if you are the subject of one of these types of orders that you do not do anything that might suggest you have been anything other than fully compliant with its terms.

Can I appeal a Domestic Violence Order?

Any person who is aggrieved by a decision of the court relating to the making or variation of a Domestic Violence Order, or Temporary Protection Order or the refusal to make or vary a Domestic Violence Order or Temporary Protection Order may appeal against the decision.

An appeal should be made in writing to the Registry of the District Court and will be heard by a Judge. Any person seeking to lodge an appeal needs to make their application within 28 days of the decision the person wishes to appeal, or if the decision was made in their absence, within 28 days of the time at which they were either, served with a copy of the order or notified of the existence of an order, whichever occurred first.

These time limits are strictly enforced and people need to ensure they take the appropriate action as soon as possible to protect their rights. The court will only extend the period to file an appeal in limited circumstances.

The operation of the original decision will not be effected through the commencement of an appeal, however a party can apply to the court to have the original decision stayed until such time as the appeal has been heard. Any decision made by the appellate court will be final, so you should make sure you get sound legal advice before lodging your appeal.

VIEW MORE INFORMATION ON DOMESTIC VIOLENCE PROTECTION ORDERS

What are the usual conditions of a Domestic Violence Order? Jonathan Nyst explains how conditions are imposed by the courts.

What happens if I breach a Domestic Violence Order? Find out more about the consequences of a breach.

When will the court make a Domestic Violence Order? Hear from Jonathan Nyst, Associate, about the court process.

Can I appeal a Domestic Violence Order? Find out more about your options and the time limits that apply.

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